Case Law, Strasbourg: Ricci v Italy, Less Restrictive Alternatives in Exercising Freedom of Expression? – Stijn Smet

On 8 October 2013, the European Court of Human Rights released its judgment in the case of Ricci v. Italy [in french only] The case concerned a broadcast by the satirical television programme Striscia la notizia (on Canale 5), which aired an intercepted episode of another television programme, normally broadcast on the public network RAI. The applicant in Ricci was the producer of the programme.

In its judgment, the Court ruled that the domestic authorities – which had sentenced the applicant to four months imprisonment – had imposed a disproportionate sanction on her. However, the Court also ruled that the applicant had acted in contravention of the ethics of journalism by disseminating confidential communications and that, therefore, her condemnation as such did not violate art. 10 ECHR. It was only because of the imposition of an excessive – criminal – sanction that her freedom of expression had been violated. The Court’s judgment is particularly interesting, because it continues the recent trend of chastising applicants for the means they have chosen to exercise their freedom of expression, thereby seemingly imposing a less restrictive alternative requirement upon them.

The facts

In 1996 (!) Striscia la notizia (translation: the news slithers), a daily programme that takes a critical-satirical look at television programmes in order to reveal malpractices, aired the recordings for an episode of the cultural programme L’altra edicola, normally broadcast on the public network RAI. The episode in question concerned a debate between a writer and a philosopher on the philosopher’s latest book. During the recording of the episode for the RAI, a verbal fight broke out between the writer and the philosopher. Afterwards, the presenter of the programme asked her assistants whether the philosopher had granted permission to broadcast the footage. When she received a negative response, she shouted “That’s not possible! … We purposively put them together, those two!”. All of this featured on the recordings made for the RAI.

Because the philosopher had refused to grant his permission to broadcast the footage, the episode in question was never shown on the RAI. However, Canale 5 – during its routine operations – inadvertently intercepted the recordings for the episode. Striscia la notizia subsequently decided to air all the material in order to “reveal the true nature of television”. Striscia la notizia wanted to demonstrate how the RAI engaged in malpractices by purposively aiming to generate a quarrel between the writer and the philosopher in order to create a spectacle for its viewers, in an effort to increase the viewership.

Subsequent to the airing of the programme, the RAI filed a complaint for fraudulent interception of confidential communications and the distribution thereof. A criminal investigation was opened against the applicant, as producer of Striscia la notizia. The RAI and the philosopher – who had refused to grant his permission to the broadcasting of the footage on the RAI only to see it appear on Canale 5 ­– became civil parties to the criminal case, demanding compensation. At the first instance, in 2002, the applicant was convicted by the Tribunal of Milan for having broadcasted the footage (the conviction did not concern the interception of the images, since the applicant had not been responsible for that). The applicant was sentenced to four months and five days imprisonment and ordered to pay 10,000 euros in compensation to the RAI and 30,000 euros to the philosopher. In 2005 the Court of Cassation reversed the criminal conviction, since the infraction had become time barred in 2004, but it upheld the order to pay compensation.

Judgment

In its short reasoning, the ECtHR accepted that the case concerned an issue of public interest. However, it went on to hold that “if the applicant wished to open a debate on an issue of primary interest to society, such as the role of televised media, other means, which did not involve any violation of the confidentiality of televised communications, were open to her.” (own translation; original in footnote).[1] The Court continued to evaluate the applicant’s actions negatively, holding in particular that she could not pretend to not be aware of the confidentiality of the intercepted communications and that, therefore, she “did not act with respect for the ethics of journalism” (own translation; original in footnote).[2] The Court subsequently concluded that the condemnation of the application had not – in and of itself – violated art. 10.

However, the Court went on to consider the severity of the penalty imposed on the applicant. The Court pointed towards the chilling effect of the imposition of a criminal sanction (even if suspended and eventually reversed because the infraction had become time barred). The Court also held that the facts of the case – the broadcasting of a video, the content of which was not liable to cause an important prejudice – were not marked by any exceptional circumstances that could justify the imposition of such a severe sanction. Consequently, the Court ruled that art. 10 had been violated, but only due to the grave nature of the sanction.

Comment

I of course agree wholeheartedly with the latter finding of the Court. There is absolutely no reason to impose criminal sanctions in this kind of cases. I struggle more with the Court’s initial finding though, i.e. that the applicant had not respected the standards of ethical journalism and that, therefore, her conviction as such did not violate art. 10. Insofar as the aim of the applicant’s conviction was to protect the interests of the RAI, I fail to see why those interests were sufficiently important to warrant an interference with the applicant’s freedom of expression. The only relevant interest of the RAI, as I see it, was a commercial interest in protecting its own communications. Given the public interest at stake – Striscia la notizia wished to expose the RAI’s malpractice in purposively bringing people together for a debate not in order to inform the viewer, but to entertain them through quarrels between the guests – it seems to me that there are, from the viewpoint of the interests of the RAI, no sufficiently strong reasons to convict the applicant for having broadcast the intercepted footage. On the contrary, I consider there to be stronger reasons for protecting/respecting the applicant’s freedom of expression, coupled with the public’s right to be informed of matters of public interest, than for protecting the RAI’s commercial image.

However, matters are different in respect of the philosopher’s rights. He had refused to give his consent to the broadcasting of the footage on the RAI, only to see it reproduced on Canale 5. His Convention right to private life, in the form of protection of confidential communications, was thus at stake. In that respect, I find it much more difficult to fault the Court for finding that the domestic courts had been justified in striking the balance in favour of the philosopher’s rights. Nevertheless, I do wish to warn against the spreading of a new argument in the Court’s freedom of expression case law, namely the argument that individuals exercising their freedom of expression should have employed less restrictive means in doing so.

This is not the first time in recent years that the Court has ruled that other means were available to the applicant to bring her message across. Indeed, in PETA Deutschland v. Germany (8 November 2012) the Court held that “the applicant has not established that it did not have other means at their (sic.) disposal of drawing public attention to [its message]”. Similarly, in the admissibility decision of Ciuvică v. Romania (15 January 2013) the Court held that “les termes employés par le requérant n’étaient pas indispensables pour la communication de son message” (see my post here).

Until Ricci, the Court had – to my knowledge – never employed such less restrictive arguments as the core argument against the applicant. Instead, they tended to feature at the very end of the Court’s reasoning, as a sort of “furthermore” or “finally” argument that was tagged on after it had already become clear that the Court would find against the applicant. In Ricci, however, the Court appears to base its entire reasoning on the fact that the applicant had other means at her disposal in communicating her message. That would, I submit, be a dangerous development, since it drags the Court ever further into debates on where the boundaries of ethical journalism lie, debates in which it should arguably not wade too deeply. Moreover, and more importantly, the imposition of a genuine less restrictive alternative requirement on an applicant exercising her freedom of expression would seriously undermine the room the Court traditionally leaves for exaggeration or provocation in art. 10 cases. In that sense, a firm reminder is also in order that the ECtHR has frequently insisted that “it is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists.” Perhaps it would be wise for the Court to ask itself to what extent a reasoning built on the argument that “the applicants had other means at her disposal to communicate her message” is really compatible with that principle.

This post originally appeared on the Strasbourg Observers blog and is reproduced with permission and thanks